Category Braverman V. Yelp

Since its founding in 2005, Yelp.com—a website where consumers review everything from cappuccinos to car mechanics—has published more than 5 million write-ups of local merchants. But in the past twelve months its online reviews have also triggered at least three defamation lawsuits.

Positive reviews can attract new customers—but negative reviews may inspire the subjects to head to court. One suit, waged by a chiropractor who was poorly reviewed on Yelp, settled in mediation earlier this year, and a second suit, filed last year by a pediatric dentist, is pending on appeal. A third case, also involving a dentist, settled last year after a superior court judge in San Francisco, where Yelp is based, granted the defendant’s anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. California attorneys, meanwhile, say they’re fielding an increasing number of calls from angry business owners seeking recourse.

“It shouldn’t come as a surprise, due to the sheer increase in popularity of these sites in the past year,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit civil liberties law firm in San Francisco that specializes in high-tech legal issues.

Suing the host sites for their user-generated content is, of course, fruitless: Section 230 of the federal Communications Decency Act (CDA) shields the sites from defamation suits as long as they didn’t create the objectionable materials.

The aggrieved parties, however, can and do go after the reviewers (known as posters) who publish their opinions online. Legally, posters have plenty of leeway – as long as they don’t cross the line into defamation, says Karl Kronenberger, a partner at San Francisco’s Kronenberger Burgoyne who represents businesses in such matters. And California’s anti-SLAPP law shields people who speak out on issues of public interest—a protection that broadly extends to consumer matters.

In addition to being difficult to prove and win, allegations of online defamation can also backfire: A stray negative posting may fade into obscurity, but a lawsuit over it can provoke exactly the kind of negative publicity that business owners are desperate to avoid, notes Mark Lemley, who teaches Internet law at Stanford Law School and is a partner at Durie Tangri Lemley Roberts & Kent in San Francisco.

This is a key reason many experts advise that, whenever possible, attorneys should help their clients settle such matters. In fact, Yelp is among the sites that try to mediate between merchants and consumers by hooking them up to smooth out their differences. And in April, Yelp followed sites such as Trip Advisor and eBay by letting merchants respond online to negative feedback.

In the meantime, the smartest strategy for merchants who’ve suffered a withering critique may be to rally patrons to post rave reviews. “The answer to negative speech, especially online, isn’t to try to silence people,” Zimmerman says, “but to encourage more speech.”

Mal Braverman is a Manhattan dentist. He sued Yelp for defamation based on two allegedly defamatory user posts. I’m not sure which posts are in question, but when I searched for “Mal Braverman” at Google today, his Yelp page was the first search result and the 3 unfiltered reviews were not flattering (though there are 27 filtered reviews–90% of the total number of reviews!–including some positive ones).

His lawsuit against Yelp is a ridiculously easy Section 230 case. If the case were brought in a state with strong anti-SLAPP protections, Braverman would be writing a check to Yelp. To get around Section 230, Braverman argued that Yelp “authored” the user reviews by (1) filtering out any positive reviews of Braverman; and (2) placing a list of other dentists entitled “Best of Yelp: New York — Cosmetic Dentists” (“Best of Yelp list”) on the same web page and encouraging users to use those dentists instead of Braverman.

His arguments go nowhere. Citing the Shiamili case (binding precedent on this court), the court says Yelp is entitled to immunity because this action is based on reviews written by other content providers — Yelp users — and not based on any content that Yelp itself created or developed.

Yelp’s alleged act of filtering out positive reviews does not make Yelp the creator or developer of the alleged defamatory reviews. Yelp’s choice to publish certain reviews — whether positive or negative — is an exercise of a publisher’s traditional editorial function protected by the CDA. Moreover, Section 230 does not distinguish between neutral and selective publishers in its grant of immunity.

In addition, Yelp’s placement of a Best of Yelp list on the same web page as the reviews does not make Yelp the creator or developer of the reviews. Yelp’s choice to insert a Best of Yelp list on the web page is an editorial choice as to what content to display on the page, and it is a separate section from the user reviews. Not even close.

The dentist originally complained that Yelp had defamed him by permitting negative reviews about him to appear on Yelp’s site. That claim had previously been denied because the federal Communication Decency Act safe harbor protected Yelp as a publisher of third-party content.

In the current matter, the dentist complained to Yelp personnel that Yelp had been filtering out positive reviews about his services. He claimed that Yelp personnel advised him to become a paid Yelp advertiser, and then his favorable consumer reviews would appear on the same web page as the unfavorable consumer reviews.

The dentist enrolled as a paid advertiser, at $350/month. As a part of the enrollment process, the dentist agreed to Yelp’s online agreement. The online agreement stated that:

The purchase of advertising programs would not influence Yelp’s automated software for online reviews or otherwise enable the purchaser to reorder online reviews;

The agreement merged and superseded any and all prior oral, emailed, or written representations and agreements between the parties (a “merger clause”); and

The forum for any litigation was California.

When the favorable consumer reviews did not appear on the same web page as the unfavorable reviews, the dentist filed a lawsuit in New York state court, claiming breach of contract. Yelp moved to dismiss the claim based on documentary evidence, or, in the alternative, based on the online agreement’s forum selection clause.

The court agreed with Yelp and determined that Yelp’s documentary evidence of its online agreement terms “flatly contradicts” the dentist’s claim, and dismissed the breach of contract claim. But the court found that the dentist had adequately stated a claim for fraudulent inducement to enter into a contract.

The court then asked whether this potential fraud claim, by itself, was sufficient to invalidate the online agreement’s forum selection clause. The court held that it did not. The court ruled that the dentist never alleged any fraud with respect to the forum selection clause, nor had the dentist demonstrated that litigating in California would be “so financially prohibitive that, for all practical purposes, plaintiff would be deprived of his day in court.”

Therefore, the court dismissed the dentist’s complaint in its entirety.